As
filed with the Securities and Exchange Commission on May 28, 2021
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
OncoCyte
Corporation
(Exact
name of registrant as specified in its charter)
California
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27-1041563
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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15
Cushing
Irvine,
California 92618
(949)
409-7600
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Mitchell
Levine
Chief
Financial Officer
OncoCyte
Corporation
15
Cushing
Irvine,
California 92618
(949)
409-7600
(Name,
address including zip code, and telephone number, including area code, of agent for service)
With
copies to:
Richard
S. Soroko, Esq.
Thompson
Welch Soroko & Gilbert LLP
3950
Civic Center Drive
Suite
300
San
Rafael, CA 94903
Tel:
(415) 448-5000
Approximate
date of commencement of proposed sale to the public: From time to time, after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer ☐
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Accelerated
filer ☐
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Non-accelerated
filer ☒
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Smaller
reporting company ☒
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Emerging
growth company ☒
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☒
CALCULATION
OF REGISTRATION FEE
Title of each class of
securities to be registered
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Amount
to be
registered(1)
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Proposed
maximum
offering price
per unit
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Proposed
maximum
aggregate
offering price
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Amount of
registration fee
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Primary Offering
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Common stock, no par value
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(2)
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(3)
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(3)
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-
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Preferred Stock, no par value
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(2)
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(3)
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(3)
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-
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Warrants
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(2)
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(3)
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(3)
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-
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Units
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(3)
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(3)
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-
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Total
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$
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240,000,000.00
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$
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26,184.00
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(4)
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(1)
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Pursuant
to Rule 416(a) under the Securities Act, the shares being registered hereunder include such indeterminate number of shares of common
stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of share splits, share
dividends or similar transactions.
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(2)
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There
are being registered hereunder such indeterminate number of shares of common stock and preferred stock, and such indeterminate number
of warrants to purchase shares of common stock and preferred stock, and such indeterminate number of units to be sold by the Registrant
which together shall have an aggregate public offering price not to exceed $240,000,000. Any such securities registered hereunder
may be sold by the Registrant separately or in combination with the other securities registered hereunder. The securities registered
also include such indeterminate number of shares of common stock and preferred stock as may be issued upon conversion of or exchange
for preferred stock that provide for conversion or exchange, upon exercise of warrants, or pursuant to the anti-dilution provisions
of any such securities.
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(3)
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The
proposed maximum aggregate offering price per class of security will be determined, from time to time, by the Registrant in connection
with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant
to General Instruction II.D. of Form S-3 under the Securities Act.
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(4)
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The
registration fee has been calculated in accordance with Rule 457(o) under the Securities Act.
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The
Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act or until this registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not
soliciting an offer to buy these securities, in any jurisdiction where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED MAY 28, 2021
PROSPECTUS
$240,000,000
Common
Stock
Preferred
Stock
Warrants
Units
We
may, from time to time in one or more offerings, offer and sell up to $240.0 million in the aggregate of common stock, preferred stock,
warrants, units or any combination of the foregoing, either individually or as a combination of one or more of these securities. This
prospectus provides a general description of the securities we may offer. We will provide the specific terms of the securities offered
in one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection
with these offerings. The prospectus supplement and any related free writing prospectus may add, update or change information contained
in this prospectus. We may sell these securities directly to investors, through agents designated from time to time or to or through
underwriters or dealers. See the section of this prospectus entitled “Plan of Distribution” for additional information.
If any underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of
such underwriters and any applicable commissions or discounts will be set forth in a prospectus supplement. The price to the public of
such securities and the net proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
Please
read carefully this prospectus, all applicable prospectus supplements, any related free writing prospectuses, and the documents incorporated
by reference herein and therein before you invest in any of our securities. This prospectus may not be used to offer or sell any securities
unless accompanied by the applicable prospectus supplement.
Our
common stock is traded on The Nasdaq Stock Market LLC, or the Nasdaq, under the symbol “OCX”. On May 26, 2021, the last reported
sales price of our common stock on the Nasdaq was $4.38 per share.
We
are an “emerging growth company” as that term is used in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act,
and, as such, have elected to comply with certain reduced public company reporting requirements for this prospectus and our filings with
the Securities and Exchange Commission.
Investing
in our securities involves a high degree of risk. See “Risk Factors” beginning on page 5 of this prospectus, and
under similar headings in the documents incorporated by reference into this prospectus or any applicable prospectus supplement or
any related free writing prospectus for a discussion of the factors we urge you to consider carefully before deciding to purchase
our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus or any accompanying prospectus supplement is truthful or complete. Any representation to the contrary is a criminal
offense.
The
date of this prospectus is , 2021
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, under
the Securities Act of 1933, as amended, of the Securities Act, using a “shelf” registration process. Under this process,
we may, from time to time, offer and sell, either individually or in combination, in one or more offerings, up to a total dollar amount
of $240.0 million of any of the securities described in this prospectus.
This
prospectus provides a general description of the securities we may offer. Each time we offer and sell securities under this prospectus,
we will, to the extent required by law, provide a prospectus supplement that will contain specific information about the terms of that
offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating
to a particular offering. The prospectus supplement and any related free writing prospectus may also add, update or change information
contained in this prospectus or in any documents that we have incorporated by reference into this prospectus with respect to that offering.
To the extent there is a conflict between any statement contained in this prospectus, any applicable prospectus supplement, any related
free writing prospectus or any document incorporated by reference into this prospectus, the statement in the document having the later
date modifies or supersedes the earlier statement.
The
information appearing in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate only
as of the date on the front of the document, and any information we have incorporated by reference is accurate only as of the date of
the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or
any related free writing prospectus, or the time of any sale of a security. Our business, financial condition, results of operations
and prospects may have changed since those dates.
You
should rely only on the information contained in, or incorporated by reference into, this prospectus and any applicable prospectus supplement,
or the information contained in any free writing prospectus we have authorized for use in connection with a specific offering. We have
not authorized anyone to provide you with different or additional information. This prospectus is neither an offer to sell nor a solicitation
of an offer to buy any securities other than those registered by this prospectus, nor is it an offer to sell or a solicitation of an
offer to buy securities where an offer or solicitation would be unlawful.
As
permitted by SEC rules and regulations, the registration statement of which this prospectus forms a part includes additional information
not contained in this prospectus. This prospectus also contains summaries of certain provisions of the documents described herein, but
all summaries are qualified in their entirety by reference to the actual documents. You may read the registration statement and the other
reports we file with the SEC, and you may obtain copies of the actual documents summarized herein (if and when filed with the SEC), at
the SEC’s website. See “Where You Can Find More Information.”
The
representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document incorporated by reference
into this prospectus were made solely for the benefit of the parties to such agreement, including for the purpose of allocating risks
among such parties, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties
or covenants do not purport to be accurate as of any date other than when made. Accordingly, such representations, warranties and covenants
should not be relied on as accurately representing the current state of our affairs.
MARKET,
INDUSTRY AND OTHER DATA
This
prospectus contains estimates, projections and other information concerning our industry, our business and the markets for our diagnostic
tests, including data regarding the estimated size of those markets and their projected growth rates, as well as market research, estimates
and forecasts prepared by our management. We obtained the industry, market and other data throughout this prospectus from our own internal
estimates and research, as well as from publicly available information, industry publications and research, surveys and studies conducted
by third-parties, including governmental agencies.
Information
that is based on estimates, forecasts, projections, market research or similar methodologies is inherently subject to uncertainties and
actual events or circumstances may differ materially from events and circumstances that are assumed in this information based on various
factors, including those discussed under the heading “Risk Factors” and elsewhere in this prospectus and in the documents
incorporated by reference. We believe that these sources and estimates are reliable but have not independently verified them and cannot
guarantee their accuracy or completeness. We caution you not to give undue weight to such projections, assumptions and estimates.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the information incorporated by reference contain “forward-looking statements” that involve risks and uncertainties.
Our actual results could differ materially from those discussed in the forward-looking statements. All statements that are not purely
historical are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities
Act”) and Section 21E of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”). Forward-looking statements
are often identified by the use of words such as, but not limited to, “anticipate,” “believe,” “can,”
“continue,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,”
“project,” “seek,” “should,” “strategy,” “target,” “will,” “would”
and similar expressions or variations intended to identify forward-looking statements, although not all forward-looking statements contain
these identifying words. These statements are based on the beliefs and assumptions of our management based on information currently available
to management. Such forward-looking statements are subject to risks, uncertainties and other important factors that could cause actual
results and the timing of certain events to differ materially from future results expressed or implied by such forward-looking statements.
Factors that could cause or contribute to such differences include, but are not limited to, those identified below and those discussed
in the Risk Factors sections and elsewhere in our Annual Reports on Form 10-K and in our Quarterly Reports on Form 10-Q and in
the other periodic reports and other filings that we file from time to time with the SEC. These factors and the other cautionary statements
made in this prospectus and the documents incorporated by reference herein should be read as being applicable to all related forward-looking
statements whenever they appear in this prospectus. The disclosure in this prospectus, including any forward-looking statement, speaks
only as of its date, the date of this prospectus, or the date of any document incorporated by reference into this prospectus, as applicable.
We disclaim any intention or obligation to update or revise any forward-looking statement, whether as a result of new information, future
events or otherwise, except as required by law.
The
forward-looking statements in this prospectus and the information incorporated by reference include, among other things, statements about:
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the
timing and potential achievement of future milestones;
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the
timing and our ability to obtain and maintain coverage and reimbursements from the Centers for Medicare and Medicaid Services and
other third-party payers;
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our
plans to pursue research and development of laboratory test candidates;
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the
potential commercialization of our laboratory tests currently in development;
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the
timing and success of future clinical trials and the period during which the results of the clinical trials will become available;
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the
potential receipt of revenue from future sales of our current laboratory tests or tests in development;
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our
assumptions regarding obtaining reimbursement and reimbursement rates;
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our
estimates regarding future orders of laboratory tests and our ability to perform a projected number of tests;
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our
estimates and assumptions around patient populations, market size and price points for reimbursement for our laboratory tests
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our
estimates regarding future revenues and operating expenses, and future capital requirements;
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our
intellectual property position;
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the
impact of government laws and regulations;
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our
ability to expand our operations geographically in the United States and abroad;
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the
impact of the Covid-19 pandemic on our operations and demand for our diagnostic tests; and
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our
competitive position;
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Please
consider our forward-looking statements in light of those risks as you read this prospectus supplement, and the accompanying prospectus
and the information incorporated into each by reference. It is not possible for our management to predict all risks, nor can we assess
the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ
materially from those contained in any forward-looking statements we may make. Given these uncertainties, you should not place undue
reliance on these forward-looking statements.
If
one or more of these or other risks or uncertainties materializes, or if our underlying assumptions prove to be incorrect, actual results
may vary materially from what we anticipate. All subsequent written and oral forward-looking statements attributable to us or individuals
acting on our behalf are expressly qualified in their entirety by this note. Before purchasing any shares of common stock, you should
consider carefully all of the risk factors set forth or referred to in this prospectus supplement, the accompanying prospectus and the
documents incorporated by reference that could cause actual results to differ.
SUMMARY
This
summary highlights selected information contained elsewhere in this prospectus. This summary is not complete and does not contain all
the information you should consider before investing in our securities pursuant to this prospectus. Before making an investment decision,
please carefully read this entire prospectus and the documents incorporated by reference into this prospectus, including the “Risk
Factors” section of our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q and our financial
statements and the related notes incorporated by reference into this prospectus. In this prospectus, unless the context otherwise requires,
the terms “OncoCyte,” “we,” “us” or “our” refer to OncoCyte Corporation.
Overview
We
are a molecular diagnostics company focused on developing and commercializing proprietary laboratory-developed tests (“LDTs”)
to serve unmet medical needs across the cancer care continuum. Our mission is to provide actionable information to physicians and patients
at critical decision points to optimize diagnosis and treatment decisions, improve patient outcomes, and reduce overall cost of care.
We have prioritized lung cancer as our first indication. Lung cancer remains the leading cause of cancer death in the United States,
despite the availability of molecular testing and novel therapies to treat patients.
Our
first commercial diagnostic test is a proprietary treatment stratification test called DetermaRx™ that identifies which patients
with early stage non-small cell lung cancer may benefit from chemotherapy, resulting in a significantly higher, five-year survival rate.
We are also developing multi-gene molecular, laboratory-developed diagnostic tests that we have branded as DetermaIO™. DetermaIO™
is a proprietary gene expression assay with promising data supporting its potential to help identify patients likely to respond to checkpoint
inhibitor drugs. This new class of drugs modulate the immune response and show activity in multiple solid tumor types including non-small
cell lung cancer (NSCLC), and triple negative breast cancer (TNBC). DetermaIO™ is presently available for research use but one
of our goals is to complete development of that assay and to make it available for clinical use later this year. We also perform assay
development and clinical testing services for pharmaceutical and biotechnology companies.
We
recently added to our diagnostic test pipeline DetermaCNI™, a patented, blood-based test for immunotherapy monitoring. DetermaCNI™
was developed by Chronix Biomedical, Inc., which we acquired through a merger in April 2021. We plan to make DetermaCNI™ available
initially as a research tool.
Other
tests in our development pipeline include DetermaTx™, a test that we are targeting for commercial launch later this year and that
is intended to compliment DetermaIO™ by assessing the mutational status of a tumor to help identify the appropriate targeted therapy.
We also plan to initiate the development of DetermaMx™ as a blood based test to monitor cancer patients for recurrence of their
disease.
Corporate
Information
We
were incorporated in 2009 in the state of California. Our principal executive offices are located at 15 Cushing, Irvine, California 92618.
Our telephone number is (949) 409-7600. Our website is www.oncocyte.com. Information contained on, or that can be accessed through,
our website, is not, and shall not be deemed to be, incorporated in this prospectus supplement or considered a part thereof.
RISK
FACTORS
Investing
in our securities involves a high degree of risk and uncertainty. Before making an investment decision with respect to our securities,
we urge you to carefully consider the risks, uncertainties and assumptions described in this prospectus, the applicable prospectus supplement
and the documents incorporated by reference herein and therein, including the risks described in Part I, Item 1A. Risk Factors
of our most recent Annual Report on Form 10-K and in our subsequent Quarterly Reports on Form 10-Q filed with the SEC. You should also
refer to the other information contained in this prospectus and the applicable prospectus supplement and the documents incorporated by
reference into this prospectus and the applicable prospectus supplement, including our financial statements and the notes to those statements
and the information set forth in the section entitled “Special Note Regarding Forward-Looking Statements.”
If
one or more of the adverse events relevant to those risks and uncertainties actually occurs, our business, financial condition, results
of operations, cash flows or prospects could be materially adversely affected. This could cause the trading price of our securities to
decline, and you could lose all or part of your investment. Additional risks and uncertainties not presently known to us or that we currently
deem immaterial also may have similar adverse effects on us.
USE
OF PROCEEDS
Except
as described in any prospectus supplement in connection with a specific offering, we intend to use the net proceeds from our sale of
the securities offered under this prospectus for working capital and general corporate purposes. The principal purposes for which we
intend to use the net proceeds from a specific offering and the approximate amounts intended to be used for each such purpose will be
set forth in the prospectus supplement relating to that offering.
DIVIDEND
POLICY
We
have never paid cash dividends on our capital stock and we do not anticipate paying cash dividends in the foreseeable future as we intend
to retain our capital resources for reinvestment in our business. Under an existing credit agreement with Silicon Valley Bank, we have
agreed not to pay dividends or to make any distributions or to redeem to repurchase any capital stock without Silicon Valley Bank’s
prior written consent. Any future determination to pay cash dividends will be at the discretion of our board of directors and will be
dependent upon the repayment of the loans from Silicon Valley Bank, our financial condition, results of operations, capital requirements
and other factors as our board of directors deems relevant.
SECURITIES
THAT MAY BE OFFERED
We
may offer shares of common stock, shares of preferred stock, warrants, units consisting of a combination of the foregoing securities
or any other combination of the foregoing. We may offer up to $240.0 million of securities under this prospectus. The prices and terms
of any offering will be determined by market conditions at the time of offering. We may issue preferred stock that is exchangeable for
or convertible into common stock or any of the other securities that may be sold under this prospectus. Each time we offer securities
under this prospectus, we will provide offerees with a prospectus supplement that will describe the specific amounts, prices and other
important terms of the securities being offered.
The
summaries below provide a general description of the securities we may offer and are not intended to be complete. The particular terms
of any security will be described in the applicable prospectus supplement.
DESCRIPTION
OF CAPITAL STOCK
The
following description of our capital stock, together with any additional information we include in any applicable prospectus supplement,
documents incorporated by reference or any related free writing prospectus, summarizes the material terms and provisions of our common
stock that we may offer, and the preferred stock that we may offer, under this prospectus. We will describe the particular terms of any
class or series of these securities in more detail in the applicable prospectus supplement. The description of our capital stock below
is summarized from, and qualified in its entirety by reference to, our Articles of Incorporation and our Bylaws, in each case, as amended
and as in effect on the date of this prospectus, each of which has been publicly filed with the SEC. Certain terms of our capital stock
described below are also based on the California Corporations Code as in existence on the date of this prospectus, and may be affected
by future amendments to such code.
General
Our
Articles of Incorporation currently authorizes the issuance of up to 150,000,000 shares of common stock, no par value, and up to 5,000,000
shares of preferred stock, no par value. As of May 10, 2021, there were 89,833,751 shares of common stock outstanding.
Common
Stock
Each
holder of record of common stock is entitled to one vote for each outstanding share owned, on every matter properly submitted to the
shareholders for their vote.
Subject
to any dividend rights of holders of any of the preferred stock that we may issue from time to time, holders of common stock are entitled
to any dividend declared by our board of directors out of funds legally available for that purpose. We have never paid cash dividends
on our capital stock and we do not anticipate paying cash dividends in the foreseeable future as we intend to retain our capital resources
for reinvestment in our business.
Subject
to the prior payment of any liquidation preference to holders of any preferred stock that we may issue from time to time, holders of
common stock are entitled to receive on a pro rata basis all of our remaining assets available for distribution to the holders of common
stock in the event of the liquidation, dissolution, or winding up of our operations. Holders of our common stock do not have any preemptive,
subscription, or redemption rights. All of the outstanding shares of our common stock are fully paid and non-assessable. The shares of
common stock offered under this prospectus or upon the conversion of any preferred stock or exercise of any warrants offered pursuant
to this prospectus, when paid for and issued in accordance with the applicable definitive documents under which they are to be issued,
will also be fully paid and non-assessable.
Our
common stock is listed on the Nasdaq under the symbol “OCX.”
The
transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC, 6201 15th Avenue, Brooklyn, New
York 11219.
Preferred
Stock
We
may issue preferred stock in one or more series, at any time, with such rights, preferences, privileges and restrictions as our board
of directors may determine, all without further action of our shareholders. Any series of preferred stock which may be authorized by
our board of directors in the future may be senior to and have greater rights and preferences than our common stock. There are no shares
of preferred stock presently outstanding and we have no present plan, arrangement, or commitment to issue any preferred stock.
The
rights, privileges, preferences and restrictions of any class or series of preferred stock may be subordinated to, pari passu with
or senior to any of those of any present or future class or series of preferred stock or common stock. Our board of directors is also
expressly authorized to increase or decrease the number of shares of any series, but subsequent to the issue of shares of that series
the number of shares of the series may not be decreased below the number of such shares then outstanding. The issuance of preferred stock
may have the effect of decreasing the market price of our common stock and may adversely affect the voting power of holders of our common
stock and reduce the likelihood that holders of our common stock will receive dividend payments and payments upon liquidation. In addition,
the issuance of preferred stock could have the effect of delaying, deferring or preventing a change in our control or other corporate
action.
The
particular terms of each class or series of preferred stock that we may offer under this prospectus, including redemption privileges,
liquidation preferences, voting rights, dividend rights or conversion rights, will be more fully described in the applicable prospectus
supplement relating to the preferred stock offered thereby. The applicable prospectus supplement will specify the terms of the class
or series of preferred stock we may offer, including:
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the
distinctive designation and the maximum number of shares in the class or series;
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the
number of shares we are offering and the purchase price per share;
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the
liquidation preference, if any;
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the
terms on which dividends, if any, will be paid;
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the
voting rights, if any;
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the
terms and conditions, if any, on which the shares of the class or series shall be convertible into, or ex-changeable for, shares
of any other class or series of authorized capital;
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the
terms on which the shares may be redeemed, if at all;
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any
listing of the preferred stock on any securities exchange or market;
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a
discussion of any material or special U.S. federal income tax considerations applicable to the preferred stock; and
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any
or all other preferences, rights, restrictions, including restrictions on transferability and qualifications of shares of the class
or series.
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DESCRIPTION
OF WARRANTS
General
We
may offer warrants for the purchase of shares of common stock, shares of preferred stock or the other securities registered hereby, in
one or more series. We may issue the warrants by themselves or together with common stock, preferred stock, other warrants or units,
and the warrants may be attached to or separate from any offered securities. While the terms we have summarized below will apply generally
to any warrants that we may offer under this prospectus, we will describe in particular the terms of any series of warrants that we may
offer in more detail in the applicable prospectus supplement and any applicable free writing prospectus. The terms of any warrants offered
by a prospectus supplement may differ from the terms described below.
We
will file as an exhibit to the registration statement of which this prospectus forms a part, or will incorporate by reference from another
report that we file with the SEC, the form of warrant or warrant agreement, which may include a form of warrant certificate, as applicable,
that describes the terms of the particular series of warrants we may offer before the issuance of the related series of warrants. We
may issue the warrants under a warrant agreement that we will enter into with a warrant agent to be selected by us. The warrant agent
will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for
or with any registered holders of warrants or beneficial owners of warrants. The following summary of material provisions of the warrants
and warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the form of warrant or
warrant agreement and warrant certificate applicable to a particular series of warrants. We urge you to read the applicable prospectus
supplement and any related free writing prospectus, as well as the complete form of warrant or the warrant agreement and warrant certificate,
as applicable, that contain the terms of the warrants.
The
particular terms of any issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may include:
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the
title of such warrants;
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the
aggregate number of such warrants;
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the
price or prices at which such warrants will be issued;
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the
currency or currencies (including composite currencies) in which the price of such warrants may be payable;
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the
terms of the securities purchasable upon exercise of such warrants and the procedures and conditions relating to the exercise of
such warrants;
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the
price at which the securities purchasable upon exercise of such warrants may be purchased;
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the
date on which the right to exercise such warrants will commence and the date on which such right shall expire;
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any
provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of
the warrants;
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if
applicable, the minimum or maximum amount of such warrants that may be exercised at any one time;
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if
applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued
with each such security;
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if
applicable, the date on and after which such warrants and the related securities will be separately transferable;
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information
with respect to book-entry procedures, if any;
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the
terms of any rights to redeem or call the warrants;
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U.S.
federal income tax consequences of holding or exercising the warrants, if material; and
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any
other terms of such warrants, including terms, procedures and limitations relating to the exchange or exercise of such warrants.
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Each
warrant will entitle its holder to purchase the number of securities at the exercise price set forth in, or calculable as set forth in,
the applicable prospectus supplement. The warrants may be exercised as set forth in the prospectus supplement relating to the warrants
offered. Unless we otherwise specify in the applicable prospectus supplement, warrants may be exercised at any time up to the close of
business on the expiration date set forth in the prospectus supplement relating to the warrants offered thereby. After the close of business
on the expiration date, unexercised warrants will become void.
We
will specify the place or places where, and the manner in which, warrants may be exercised in the form of warrant, warrant agreement
or warrant certificate and applicable prospectus supplement. Upon receipt of payment and the warrant or warrant certificate, as applicable,
properly completed and duly executed at the corporate trust office of any warrant agent, or any other office (including ours) indicated
in the prospectus supplement, we will, as soon as practicable, issue and deliver the securities purchasable upon such exercise. If less
than all of the warrants (or the warrants represented by such warrant certificate) are exercised, a new warrant or a new warrant certificate,
as applicable, will be issued for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders
of the warrants may surrender securities as all or part of the exercise price for warrants.
Prior
to the exercise of any warrants to purchase common stock or preferred stock, holders of the warrants will not have any of the rights
of holders of common stock or preferred stock purchasable upon exercise, including the right to vote or to receive any payments of dividends
or payments upon our liquidation, dissolution or winding up on the common stock or preferred stock purchasable upon exercise, if any.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we may include in any applicable prospectus supplement, summarizes the
material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply
generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more
detail in the applicable prospectus supplement and any related free writing prospectus. The terms of any units offered by a prospectus
supplement may differ from the terms described below.
We
will file as an exhibit to the registration statement of which this prospectus forms a part, or will incorporate by reference from another
report we file with the SEC, the form of unit agreement that describes the terms of the series of units we may offer under this prospectus,
and any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions
of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental
agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplement and any related free
writing prospectus, as well as the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We
may offer units comprised of any combination of our common stock, preferred stock, warrants or other units, in one or more series. Each
unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit
will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide
that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units, including:
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the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately;
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any
provisions of the governing unit agreement that differ from those described below; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
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The
provisions described in this section, as well as those described in the sections of this prospectus titled “Description of Capital
Stock” and “Description of Warrants” will apply to each unit and to any common stock, preferred stock or
warrant included in each unit, respectively.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency
or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit
agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the
consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any
security included in the unit.
We
and any unit agent (including any of its agents) may treat the registered holder of any unit certificate as an absolute owner of the
units evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested,
despite any notice to the contrary.
PLAN
OF DISTRIBUTION
We
may sell our securities directly to one or more investors. We may also sell our securities through agents designated from time to time
or to or through underwriters or dealers. The applicable prospectus supplement and any related free writing prospectus will describe
the terms of the offering of the securities, including, to the extent applicable:
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the
name or names of any agents, underwriters or dealers;
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the
purchase price of the securities being offered and the net proceeds we will receive from the sale;
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any
over-allotment options under which underwriters may purchase additional securities from us;
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any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any
discounts or concessions allowed or re-allowed or paid to dealers; and
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any
securities exchanges or markets on which such securities may be listed.
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We
may distribute our securities from time to time in one or more transactions at:
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a
fixed price or prices, which may be changed from time to time;
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market
prices prevailing at the time of sale;
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prices
related to such prevailing market prices; or
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negotiated
prices.
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Agents
We
may designate agents who agree to use their reasonable efforts to solicit purchases of our securities for the period of their appointment
or to sell our securities on a continuing basis. We will name any agent involved in the offering and sale of securities and we will describe
any fees or commissions we will pay the agent in the applicable prospectus supplement.
Underwriters
If
we use underwriters for a sale of securities, the underwriters will acquire the securities for their own account. The underwriters may
resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying
prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions
set forth in the applicable underwriting agreement. Subject to certain conditions, the underwriters will be obligated to purchase all
the securities of the series offered if they purchase any of the securities of that series. We may change from time to time any public
offering price and any discounts or concessions the underwriters allow or reallow or pay to dealers. We may use underwriters with whom
we have a material relationship. We will name any underwriter involved in the offering and sale of securities, describe any discount
or other compensation and describe the nature of any material relationship in any applicable prospectus supplement. Only underwriters
we name in the prospectus supplement will be underwriters of the securities offered by that prospectus supplement.
We
may have agreements with the agents and underwriters to indemnify them against specified civil liabilities related to offerings under
this prospectus, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters
may make with respect to these liabilities.
Underwriters,
dealers and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act, and any
discounts or commissions they receive from us and any profit on their resale of the securities may be treated as underwriting discounts
and commissions under the Securities Act. We will identify in the applicable prospectus supplement any underwriters, dealers or agents
and will describe their compensation. We may have agreements with the underwriters, dealers and agents to indemnify them against specified
civil liabilities related to offerings under this prospectus, including liabilities under the Securities Act, or contribution with respect
to payments that the agents or underwriters may make with respect to these liabilities. Underwriters, dealers and agents may engage in
transactions with or perform services for us in the ordinary course of their businesses.
Trading
Markets and Listing of Securities
Unless
otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established
trading market, other than our common stock, which is currently listed on the Nasdaq. We may elect to list or qualify for trading any
other class or series of securities on any securities exchange or other market, but we are not obligated to do so. It is possible that
one or more underwriters may make a market in a class or series of securities, but the underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market
for any of the securities.
Stabilization
Activities
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation
M under the Exchange Act of 1934, as amended, or the Exchange Act. Overallotment involves sales in excess of the offering size, which
create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do
not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution
is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price
of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of these activities at
any time.
Passive
Market Making
Any
underwriter who is a qualified market maker on the Nasdaq may engage in passive market making transactions in securities listed on the
Nasdaq in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement
of offers or sales of the securities. A passive market maker must comply with applicable volume and price limitations and must be identified
as a passive market maker. In general, a passive market maker must display its bid at a price not in excess of the highest independent
bid for such security. If all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s
bid must then be lowered when certain purchase limits are exceeded.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the any common stock, preferred stock, warrants or units
offered under this prospectus and any supplement hereto will be passed upon for us by Ellenoff Grossman & Schole LLP, New York, New
York.
EXPERTS
The
balance sheets of OncoCyte Corporation as of December 31, 2020 and 2019, and the related statements of operations, comprehensive loss,
stockholders’ equity, and cash flows for each of the two years in the period ended December 31, 2020, have been incorporated by
reference into this prospectus and the registration statement in reliance on the report of OUM & Co. LLP, an independent registered
public accounting firm, upon the authority of said firm as experts in auditing and accounting.
INFORMATION
INCORPORATED BY REFERENCE
The
SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to
you by referring you to another document that we have filed separately with the SEC. You should read the information incorporated by
reference because it is an important part of this prospectus. Statements contained in documents that we file with the SEC and that are
incorporated by reference into this prospectus will automatically update and supersede information contained in this prospectus, including
information in previously filed documents or reports that have been incorporated by reference into this prospectus, to the extent the
new information differs from or is inconsistent with the old information. We incorporate by reference the following information or documents
that we have filed with the SEC (excluding those portions of any Form 8-K that are not deemed “filed” pursuant to the General
Instructions of Form 8-K):
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Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the SEC on March 19, 2021, as amended by Form 10-K/A-1 filed with the SEC on April 30, 2021;
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Our
Quarterly Report on Form 10-Q for the three months ended March 31, 2021, filed with the SEC on May 17, 2021;
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Our
Current Reports on Form 8-K, filed with the SEC on January 21, February 2, February 3, February 4, February 5, February 25, March 1,April 19, and May 21, 2021; and
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The
description of our common stock included in Exhibit 4.11 to our Annual Report on Form 10-K for the fiscal year ended December 31,
2020, as filed with the SEC on March 19, 2021; including any amendment or report (or exhibit to any such amendment or report) filed
for the purpose of updating that description.
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All
documents that we file with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding those portions of such
documents furnished to, rather than filed with, the SEC) (i) after the initial filing date of the registration statement of which this
prospectus forms a part and prior to the effectiveness of such registration statement and (ii) after the date of this prospectus and
prior to the termination of the offering shall be deemed to be incorporated by reference into this prospectus from the date of filing
of the documents, unless we specifically provide otherwise. Information that we file with the SEC will automatically update and may replace
information previously filed with the SEC. To the extent that any information contained in any current report on Form 8-K or any exhibit
thereto, was or is furnished to, rather than filed with the SEC, such information or exhibit is specifically not incorporated by reference.
We
will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral
request, a copy of any or all documents that are incorporated by reference into this prospectus, but not delivered with the prospectus,
other than exhibits to such documents unless such exhibits are specifically incorporated by reference into the documents that this prospectus
incorporates. You should direct any requests to:
OncoCyte
Corporation
15
Cushing
Irvine,
California 92618
(949)
409-7600
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus is part of a registration statement we filed with the SEC. This prospectus does not contain all of the information set forth
in the registration statement and the exhibits to the registration statement. For further information with respect to us and the securities
we are offering under this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a part of the
registration statement. Neither we nor any agent, underwriter or dealer has authorized any person to provide you with different information.
We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information
in this prospectus is accurate as of any date other than the date on the front page of this prospectus, regardless of the time of delivery
of this prospectus or any sale of the securities offered by this prospectus.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an Internet website
that contains reports, proxy and information statements and other information regarding issuers, including us, that file electronically
with the SEC. The address for the SEC’s website is http://www.sec.gov.
Our
website address is www.oncocyte.com. Information contained on, or that can be accessed through, our website, is not, and shall
not be deemed to be, incorporated in this prospectus supplement or considered a part thereof.
We
make available, free of charge, through our investor relations section of our website, our Annual Reports on Form 10-K, Quarterly Reports
on Form 10-Q, Current Reports on Form 8-K, statements of changes in beneficial ownership of securities and amendments to those reports
and statements as soon as reasonably practicable after they are filed or furnished with the SEC.
$240,000,000
Common
Stock
Preferred
Stock
Warrants
Units
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth an estimate of the fees and expenses relating to the issuance and distribution of the securities being registered
hereby, other than underwriting discounts and commissions. All of such fees and expenses, except for the SEC Registration Fee and the
FINRA filing fee, are estimated:
SEC
registration fee
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$
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26,184.00
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FINRA
filing fee
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$
|
36,500.00
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Legal
fees and expenses
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$
|
100,000,00
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Accounting
fees and expenses
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$
|
15,000.00
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Miscellaneous
fees and expenses
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$
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7,316.00
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Total
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$
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185,000.00
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Item
15. Indemnification of Officers and Directors.
Section
317 of the California Corporations Code permits indemnification of directors, officers, employees and other agents of corporations under
certain conditions and subject to certain limitations. In addition, Section 204(a)(10) of the California Corporations Code permits a
corporation to provide, in its articles of incorporation, that directors shall not have liability to the corporation or its shareholders
for monetary damages for breach of fiduciary duty, subject to certain prescribed exceptions. Article Five of the Registrant’s Articles
of Incorporation contains provisions for the indemnification of directors, officers, employees and other agents within the limitations
permitted by Section 317 and for the limitation on the personal liability of directors permitted by Section 204(b)(10), subject to the
exceptions required thereby.
Under
Article VI of the Registrant’s Bylaws, any person who is or was one of the Registrant’s directors or officers, employees,
or other agents, or is or was serving at the Registrant’s request as a director, officer, employee, or agent of another foreign
or domestic corporation, partnership, joint venture, trust, or other enterprise, will be considered an “agent” entitled to
indemnification against expenses arising under certain proceedings. To the maximum extent permitted by the California Corporations Code,
the Registrant will indemnify any person who was or is a party, or is threatened to be made a party, to any proceeding (other than an
action by or in the right of the Registrant) by reason of the fact that the person is or was an agent of the Registrant, against expenses,
judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with the proceeding if that person acted
in good faith and in a manner that person reasonably believed to be in the best interests of the Registrant and, in the case of a criminal
proceeding, had no reasonable cause to believe his conduct of was unlawful. The termination of any proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the agent did not act
in good faith and in a manner which agent reasonably believed to be in the best interests of the Registrant or that the agent had reasonable
cause to believe that his conduct was unlawful.
The
Registrant will also indemnify any agent who was or is a party or is threatened to be made a party, to any threatened, pending or
completed action by or in the right of the Registrant to procure a judgment in its favor by reason of the fact that person is or was
an agent of the Registrant , against expenses actually and reasonably incurred by the agent in connection with the defense or settlement
of that action if the agent acted in good faith, in a manner that the agent believed to be in the best interests of the Registrant and
with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.
No indemnification shall be made:
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In
respect of any claim, issue or matter as to which that the agent is adjudged to be liable to the Registrant in the performance of
that person’s duty to the Registrant, unless and only to the extent that the court in which that action was brought shall determine
upon application that, in view of all the circumstances of the case, that the agent is fairly and reasonably entitled to indemnity
for the expenses which the court shall determine;
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Of
amounts paid in settling or otherwise disposing of a threatened or pending action, with or without court approval; or
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Of
expenses incurred in defending a threatened or pending action which is settled or otherwise disposed of without court approval.
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To
the extent that an agent of the Registrant is successful on the merits in defense of any proceeding for which the agent is entitled to
indemnification under the Registrant’s Bylaws, the agent will be indemnified against expenses of the defense actually and reasonably
incurred. Except as with respect to a successful defense on the merits in a proceeding, indemnification will be provided under the Registrant’s
Bylaws only if authorized in the specific case on a determination that indemnification of the agent is proper in the circumstances because
the agent has met the applicable standard of conduct set forth in the Registrant’s Bylaws, by:
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A
majority vote of a quorum consisting of directors who are not parties to the proceeding;
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Approval
by the affirmative vote of a majority of the shares of the Registrant entitled to vote represented at a duly held meeting at which
a quorum is present or by the written consent of holders of a majority of the outstanding shares entitled to vote. For this purpose,
the shares owned by the person to be indemnified shall not be considered outstanding or entitled to vote thereon; or
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●
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The
court in which the proceeding is or was pending, on application made by the Registrant or the agent or the attorney or other person
rendering services in connection with the defense, whether or not such application by the agent, attorney, or other person is opposed
by the Registrant.
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Expenses
incurred in defending any proceeding may be advanced by the Registrant before the final disposition of the proceeding on receipt of an
undertaking by or on behalf of the agent to repay the amount of the advance unless it shall be determined ultimately that the agent is
entitled to be indemnified as authorized in the Registrant’s Bylaws.
The
Registrant will not provide indemnification or advance expenses on behalf of an agent in any circumstance where it appears:
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That
it would be inconsistent with a provision of the Registrant’s Articles of Incorporation, a resolution of the shareholders,
or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses
were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or
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That
it would be inconsistent with any condition expressly imposed by a court in approving a settlement.
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Officers
and directors of the Registrant are also parties to indemnification agreements which supplement the indemnification rights under
the Articles of Incorporation and Bylaws and provide that the Registrant will, to the fullest extent permitted by law, indemnify
such directors and officers against any and all expenses and liabilities incurred by each such indemnitees in the course of conduct
of the Registrant’s business or the business of any of their affiliates. The Registrant will not be liable under the indemnification
agreements to make any duplicate payment to any director or officer in respect of any expenses or liabilities to the extent such
indemnitee has otherwise received payment under any insurance policy, the Articles of Incorporation or Bylaws, other indemnity provisions
or otherwise of the amounts which the Registrant must otherwise pay under the indemnification agreements. In the event of an indemnification
pursuant to the indemnification agreements, the Registrant may provide for and pay for the costs of the defense against any legal
action in respect of liabilities as to which it has indemnified the director or executive officer. The obligations to indemnify will
continue to the extent provided in the indemnification agreements notwithstanding that the director or officer may no longer be a
director or officer of the Registrant.]
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Further,
the Registrant maintains directors’ and officers’ liability insurance coverage.
The
foregoing summaries are necessarily subject to the complete text of the California Corporations Code and the Registrant’s Articles
of Incorporation, Bylaws, and Indemnification Agreements.
Item
16. Exhibits
*
To be filed by amendment or incorporated by reference in connection with the offering of the offered securities.
**
Filed herewith.
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(iii)
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To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
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provided,
however, that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A)
each prospectus filed pursuant to Rule 424(b)(3) as part of a registration statement as of the date the filed prospectus was deemed part
of and included in the registration statement.
(B)
each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(5)
That, for purposes of determining any liability under the Securities Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to
this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Act, and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in Irvine, California, on May 28, 2021.
|
ONCOCYTE
CORPORATION
|
|
|
|
|
By:
|
/s/
Ronald Andrews
|
|
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Ronald
Andrews
President
and Chief Executive Officer
|
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Ronald Andrews and Mitchell
Levine, and each of them, his/her true and lawful attorney-in-fact and agent with full power of substitution and re-substitution, for
him/her and in his/her name, place and stead, in any and all capacities to sign any or all amendments (including, without limitation,
post-effective amendments) to this registration statement, any related registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and any or all pre- or post-effective amendments thereto, and to file the same, with all exhibits
thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the
premises, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming that said attorney-in-fact
and agent, or any substitute or substitutes for him, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in
the capacities and on the dates indicated
Signature
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Title
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Date
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|
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/s/
Ronald Andrews
|
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Chief
Executive Officer and Director
|
|
May
28, 2021
|
Ronald
Andrews
|
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(Principal
Executive Officer)
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|
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/s/
Mitchell Levine
|
|
Chief
Financial Officer and Treasurer
|
|
May
28, 2021
|
Mitchell
Levine
|
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(Principal
Financial Officer)
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/s/
Li Yu
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|
Vice
President, Controller
|
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May
28, 2021
|
Li
Yu
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(Principal
Accounting Officer)
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/s/
Andrew Arno
|
|
Director
|
|
May
28, 2021
|
Andrew
Arno
|
|
|
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|
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|
|
|
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/s/
Jennifer Levin Carter
|
|
Director
|
|
May
28, 2021
|
Jennifer
Levin Carter
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|
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/s/
Melinda Griffith
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Director
|
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May
28, 2021
|
Melinda
Griffith
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/s/ Alfred D. Kingsley
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Director
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May
28, 2021
|
Alfred
D. Kingsley
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/s/
Andrew Last
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Director
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May
28, 2021
|
Andrew
Last
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|
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|
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/s/
Cavan Redmond
|
|
Director
|
|
May
28, 2021
|
Cavan
Redmond
|
|
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